The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Sunday, July 31, 2005

Bloggus interruptus

My blogging is likely to be nonexistent for the next several days because I'm starting a jury trial tomorrow morning. It's another one that I'm sort of parachuting into at the last moment, without having participated in any of the pretrial discovery and workup, so that alone would make it very challenging.

Thursday, July 28, 2005

Teddy tells it true

"[Conservative bloggers have] got material out there that we don't know about," complained Sen. Edward Kennedy, who's leading an effort to force the White House to turn over any documents it has on [Supreme Court nominee John G.] Roberts.

Yeah, or at least material that he pretends he doesn't know, like DC Circuit caselaw on privilege that's been carefully hidden in the Federal Reporter, Third Series.

Wednesday, July 27, 2005

Berger's back, before he's even finished going away

So if [Samuel R. "Sandy"] Berger indeed still has a future as a political appointee, that will be the fault of the politicians, not the prosecutors....

... [I]f my nightmare scenario comes to pass — if the Senate is ever again asked to confirm Sandy Berger for any public post — I believe it would be wrong for the opposition to filibuster his nomination. Oh, no — he'll deserve an up-or-down vote on the merits, with every senator going on record! ... But with respect to Sandy Berger, that future political judgment on the Senate floor ought to be — may not turn out to be, but ought to be, if principle can indeed prevail over spin — preordained by this week's legal judgment in a court of law: GUILTY.

He is guilty. Forever, undeniably — guilty. Pardoned or not, rehabilitated or not, penitent or not, buffoonish or not — self-admittedly guilty of deliberately, intentionally, cynically, cravenly betraying the public trust and the national interest of this country. And then he lied about it to the public, before finally confessing as part of his guilty plea.

Bookmark this post for 2009 — just in case.

Earlier this summer, convicted criminal Berger's sentencing was postponed from its original July setting until September. But obviously, my 2009 target date was off by a full four years. Even before his sentence has been pronounced, much less fulfilled, the rehabilitation of Sandy Berger's public career has already begun — not through any penance or public service, but through a bureaucratically bloviating op-ed in today's Washington Post, co-written with none other than Brent Scowcroft.

This makes me absolutely nauseated. I'm completely unsurprised that the WaPo would start flacking for convicted criminal Berger again, but whatever remaining respect I had for Mr. Scowcroft has completely evaporated.

Tuesday, July 26, 2005

I was astonished to hear Sen. Patrick Leahy say on ABC News' This Week program on Sunday morning that attorney-client privilege couldn't possibly cover John G. Roberts' communications while at the Office of the Solicitor General. I thought about blogging about it immediately, but then I thought, "That's so ridiculous, I'm not going to bother."

But then I read his comment quoted again in several different places — for example, in the NYT — without any of the MSM outlets who were quoting him simultaneously saying, "This is a preposterous and incorrect statement of the law":

On Sunday, Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, said lawyer-client privilege did not apply either to Judge Roberts's work at the Justice Department or to his work at the White House. Speaking on the ABC News program "This Week," Mr. Leahy said lawyers in the solicitor general's office "are not working for the president," but are "working for you and me, and all the American people."

So I'll say it: Sen. Leahy's statement is a preposterous and incorrect statement of the law, and it's not a close question. He's just completely full of crap on this.

"Courts, commentators, and government lawyers have long recognized a government attorney-client privilege in several contexts," the DC Circuit wrote in In re Lindsey, 158 F.3d 1263, 1268 (D.C. Cir.), cert. denied, 525 U.S. 996 (1998), and then proceeded to track through several such contexts. As part of that discussion, among many other resources, it quoted with approval a 1982 study written by then-Assistant Attorney General Ted Olsen which opined that

[a]lthough the attorney-client privilege traditionally has been recognized in the context of private attorney-client relationships, the privilege also functions to protect communications between government attorneys and client agencies or departments, as evidenced by its inclusion in the [Freedom of Information Act], much as it operates to protect attorney-client communications in the private sector.

The DC Circuit took the existence of an attorney-client privilege covering government lawyers — one distinct from other privileges that might also apply, like executive privilege — to be a noncontroversial topic, which it indeed is; the Lindsey case mostly had to do with tougher questions about when that privilege might be waived or overcome by a showing of need.

So "courts, commentators, and government lawyers" have long recognized this — just not the former chairman of the Senate Judiciary Committee when Dems last had control of the Senate. As for the MSM mouthpieces that have been repeating Sen. Leahy's comment as if it weren't drivel, I'm pretty sure they all have lawyers available to them. Any lawyer with Westlaw or Lexis/Nexis could have found the Lindsey case in about 30 seconds (which is how long it took me). I'd say "For shame!" but they're obviously shameless, as is Sen. Leahy.

Monday, July 25, 2005

A response to Jonathan Turley re Judge Roberts and recusal

George Washington University Law Professor Jonathan Turley has an interesting op-ed in the Los Angeles Times in which he tries to raise a red flag over the prospect that Supreme Court nominee John G. Roberts' religious faith might oblige him to recuse himself in important cases, potentially creating an equally divided Court or otherwise affecting those cases' outcomes:

According to two people who attended [an informal] meeting [last week], Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).

Renowned for his unflappable style in oral argument, Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.

It was the first unscripted answer in the most carefully scripted nomination in history. It was also the wrong answer. In taking office, a justice takes an oath to uphold the Constitution and the laws of the United States. A judge's personal religious views should have no role in the interpretation of the laws. (To his credit, Roberts did not say that his faith would control in such a case)....

... [I]n his appellate court confirmation hearings, Roberts was asked specifically whether he could apply Roe vs. Wade and he stated that he could. Now, as he moves toward a job in which he could ultimately be the deciding vote to narrow, preserve or overturn the doctrine, it could be a materially different moral choice for a devout jurist.

Without mocking Prof. Turley's concerns, nor his or Judge Roberts' faith, I think this op-ed considerably overstates the potential problem, both in general and specifically with respect to Judge Roberts.

There are certainly non-Roman Catholic judges who are also deeply religious and deeply moral; the Roman Catholic Church does indeed have high profile public positions on some religious/moral issues that also have legal implications, but the sort of potential conflict that Prof. Turley describes could always arise with any potential nominee to any position on any judicial bench.

And in fact, Judge Roberts' thoughtful answer is not only not wrong, it's precisely the same answer that every ethical lawyer — not just a judge — has to give to that hypothetical question if the premise of the hypothetical is that one's personal belief (religious or otherwise) is likely to seriously cloud one's legal reasoning and judgment. Lawyers are obliged by the relevant ethical rules (e.g., Rule 1.06(b) of the Texas Disciplinary Rules of Professional Conduct, which is typical) to disqualify themselves from representation of a client when that representation "reasonably appears to be or become adversely limited ... by the lawyer's ... own interests." Every lawyer should know that when his personal beliefs genuinely threaten to cloud his judgment, he must disqualify himself or, if he reasonably believes he can function effectively despite those beliefs, he may disclose them and leave the decision to his client. As the comments to the rule state:

The critical questions are the likelihood that a conflict exists or will eventuate and, if it does, whether it will materially and adversely affect the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. It is for the client to decide whether the client wishes to accommodate the other interest involved.

This is an issue that every lawyer potentially must face in every case — whether he's a Roman Catholic, a Hindu, or an atheist. But normally, it takes milliseconds to run this ethical self-check, and it may not even be done on a conscious level.

Comparable provisions of legal ethics likewise may occasionally require judges to disqualify themselves. Canon 3C(1) of the Code of Conduct for United States Judges requires that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." This includes situations when the person reasonably questioning the judge's impartiality is himself or herself. And although there are potentially competing interests involved — for example, Canon 3A(2) requires that "[a] judge should hear and decide matters assigned, unless disqualified," and as Justice Scalia has pointed out, there are well-recognized policies unique to the Supreme Court that counsel strongly against casual self-recusals — this, again, is potentially an issue that every judge must face in every case, and judges' ethical self-checks are typically no more difficult or risky than lawyers'.

So if there's nothing about this issue that's in any way unique to Judge Roberts or to Roman Catholic nominees generally, then how important is it? I don't mean to trivialize any ethical obligation of judges or lawyers, nor to ridicule any lawyer or judge whose ethical self-test throws up a red flag and ends up in a self-disqualification. But I suggest that one may and should look to real-world experience to answer the "how important?" question. And when one does that, the answer almost certainly is: "Not likely to be important."

Personally, for example, in twenty-five years of practice, I can count on one hand, easily, the number of times I've felt obliged to recuse myself (or make disclosures and ask for a client's informed waiver). And I've very, very rarely seen situations in which other lawyers or judges have self-recused, or in which I thought they ought to have done so. A fair question for Judge Roberts in his confirmation hearings might be this: "Not hypothetically, but in the real world, how often have you actually had to self-recuse, either as a practicing lawyer or as a judge, based on your reasonable concerns that your personal beliefs were likely to affect your legal judgment?" I strongly suspect that Judge Roberts' answer to that question — like my own, and like the answer of essentially all other lawyers and judges — will be "not very often."

Indeed (and sometimes to the point of disgust from others), we lawyers are trained and well-practiced, probably moreso than any other profession, to compartmentalize; to look at problems from multiple angles (always at least two in adversary situations); and to be able to argue all sides of almost any legal issue. From what I've read of Judge Roberts' career — and in particular, the diversity of the private clients he's represented — he's at least as capable as the average lawyer or judge of doing these things effectively. We also know for certain while a lawyer, Judge Roberts has dealt with almost all the kinds and varieties of disputes, public and private, that come before federal appellate courts, because that's been his almost exclusive practice.

So boiled down, my 16-word rebuttal to Prof. Turley's op-ed is this: It's not just him, and it's not really likely to become a real-world problem anyway.

Sunday, July 24, 2005

Studebaker in exile

Mickey Kaus claims, somewhat aghast and disapprovingly (albeit in a guilty, conflicted sort of way), that "Supreme Court nominee John Roberts appears to drive a Chrysler PT Cruiser." Likewise, MSNBC reports that "No black limousine for John Roberts on his first day as a Supreme Court nominee. He drove his Chrysler PT Cruiser to the White House for morning coffee with President Bush."

The New York Timesinsists, however, that the car belongs to Judge Roberts' wife, Jane Sullivan Roberts:

Among her only complaints is that the air-conditioning in her PT Cruiser, which she is driving to strategy sessions at the White House, stopped working during this, the hottest week so far in a very hot summer. So far, she has said, she has managed to weather the heat.

And "[n]o less a Democratic stalwart than Senator Edward M. Kennedy said, at a breakfast meeting with reporters on Friday, that Mrs. Roberts' work 'ought to be out of bounds,'" says the NYT.

So my question is this: Will the Dems seek to smear Judge Roberts using his wife's retro — dare we say "neo-conservative" — selection of the PT Cruiser? Or will they take the chance that the independence of mindset, the willingness to buck conventional Republican country-club mores, demonstrated by the family's ownership of the Cruiser displays a quirky independence that should comfort concerned liberals? Or does it say that Judge and Justice-to-be Roberts has a hidden Happy Days streak? Does he really like Ike? Will we see a Justice Roberts "grow" while on the Court, perhaps to the point of embracing tailfins that have no appreciable affect upon interstate commerce?

What, precisely, does this vehicle say about Judge Roberts' views on stare decisis? Is this the series of questions, or the mechanical disfunction, that will finally give Sen. Kennedy the power to make this nominee sweat? Or is this a nominee who will cooly, affably stare down challenging Dems on the Judiciary Committee and say: "Pimp my ride!"

Specter on "superprecedents"

In an op-ed in today's NYT, Sen. Arlen Specter (R-PA), chairman of the Senate Judiciary Committee, writes of the upcoming hearings on Supreme Court nominee John G. Roberts (emphasis mine):

The confirmation precedents forcefully support the propriety of a nominee declining to spell out how he or she would rule on a specific case. Abraham Lincoln is reputed to have said pretty much the same thing: "We cannot ask a man what he will do, and if we should, and he should answer us, we would despise him. Therefore, we must take a man whose opinions are known."

This, of course, does not foreclose probing inquiries on the nominee's general views on jurisprudence. For example, it would be appropriate to ask how to weigh the importance of precedent in deciding whether to overrule a Supreme Court decision. Some legal scholars attach special significance to what they call superprecedents, which are decisions like Roe v. Wade that have been reaffirmed in later cases.

Huh?

My Westlaw searchs of the "allfeds" library — which includes basically all the federal cases that have been entered into Westlaw's enormous database, going back many decades and for every level and location of federal court — for "superprecedents," "super-precedents," "superprecedent," and "super-precedent" return zero hits. Which is to say, as best I can tell, the term has never, ever been used by any federal court, certainly including the Supreme Court going all the way back.

A Google search for "superprecedents" turns up one hit, an article entitled "Aging and Productivity Among Judges: Some Empirical Evidence from the High Court of Australia."

A Google search for "super-precedents" turns up one more hit, which is a (decidedly not safe-for-work) pornographic comics page.

A Google search on "superprecedent" helpfully asks if I really meant to ask about "super presidents," but offers up another three hits. One's in German, I think, and appears to have something to do with aviation. Another is about the Supreme Court of Canada's self-citation practices from 1989-1993. And the third, finally, does appear to have something to do with American law, since it's an outline from a civil procedure class at Arizona State University in the Spring 2000 semester, and it uses the term exactly once, without definition.

A Google search for "super-precedent," singular but hyphenated, adds an article about a world-class women's swimmer in the 1930s who supposedly set a "super-precedent" for Janet Jackson's Super Bowl wardrobe malfunction. And there's another hit that appears to be about the "Parents’ Council of Scoil Realta na Maidine" (which I gather is in Ireland) setting a super precedent with an amateur art exhibition. But this search also turns up this post, which oddly enough seems to be a short discussion of collateral estoppel/res judicata (probably someone's notes from a law school class), except that it's on an internet domain named "brainporn.org." And that same search also turns up this post from November 2004, on a blog I'm unfamiliar with, which seems to suggest that the author has heard this term used about Roe v. Wade in the past by ... Senator Arlen Specter.

Does anyone out there have a clue what Sen. Specter is talking about? Because I certainly don't recognize this term. And it's kind of freaking me out to read the chairman of the Senate Judiciary Committee suggesting in the New York Times that a Supreme Court nomination might turn in part on a concept apparently unknown to federal jurisprudence (as least as written by any federal court), but in any event entirely unknown to me.

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UPDATE (Sun Jul 22 @ 1:50pm): Prof. Althouse and her readers also have some interesting comments on this, as have mine. [Edit: To be more specific, her readers pointed out yesterday the Landes/Posner law review usage of the term "superprecedents" in 1976 to mean something different from what Sen. Specter meant, and my readers pointed out Fourth Circuit Judge Luttig's use of the similar term "super-stare decisis" for Roe/Casey in what I still believe can't be interpreted as a new Supreme Court-level doctrine of stare decisis. These are the same two points brought up today by emailers to the Corner, many of whom appear to have also emailed me, and some of whom may not have read the cross-linked post and/or the comments on both that post and this one. Prof. Althouse and I are both blessed with wonderful commenters and emailers, and their efforts are usually worth reading, and particularly so on these two posts. — Beldar, Mon Jul 23 @ 1:15pm]

UPDATE (Mon Jul 23 @ 11:15am): I'm flattered that Ramesh Ponnuru and JonahGoldberg have linked this post. And it would be a considerable understatement for me to say that Sen. Specter is not among my all-time favorite Republicans. But my question wasn't entirely rhetorical or snarky; I genuinely did, and do, want to know where Sen. Specter came up with this term. If the term (and the apparent concept) is as novel and obscure as it would seem, but it's nevertheless to be the basis for Senate questioning of Judge Roberts, then surely the questions should make that clear, as in: "Are you in favor of creating a new principle as part of the law of stare decisis, one never before expressly adopted by any federal court, to the effect that certain 'superprecedents' should be (in some yet undefined way) extra-hard to overrule?" If Prof. Althouse's speculation is right — that this term is intended to be a way to extract from Judge Roberts a particular pre-commitment about Roe — then it ought to be clear to all observers that Sen. Specter (or others using this term and concept) are asking him to commit to something radically different than current or historical law on stare decisis, and something that would presumably have prevented, say, Brown v. Board of Education from overruling (oft-previously-reaffirmed) Plessy v. Ferguson.

UPDATE (Mon Jul 23 @ 1:30pm): A helpful reader emailed me with a link to the very fine confirmthem.com post referenced yesterday in my comments, which also discusses Sen. Specter's op-ed, Judge Luttig's use of the term "super-stare decisis," and how the idea of "superprecedents" might play out in Judge Roberts' confirmation hearing.

Stupidest thing I've read in the NYT this month

The folks at the NYT are acting like a full-bladdered male hound dog stuck in a round room:

Mr. Bush's political opponents say the president is in a box. In their view, either Mr. Rove and Mr. Libby kept the president in the dark about their actions, making them appear evasive at a time when Mr. Bush was demanding that his staff cooperate fully with the investigation, or Mr. Rove and Mr. Libby had told the president and he was not forthcoming in his public statements about his knowledge of their roles....

There is a third option, that neither Mr. Rove nor Mr. Libby considered their conversations with the journalists to have amounted to leaking or confirming the information about Ms. Wilson. In that case, they may have felt no need to inform the president, or they did inform him and he shared their view that they had done nothing wrong.

How about Option Number Four: "The President meant what he said when he said he intended to let the investigation go forward, cooperating with, but not interfering in it, and he knows he's not the prosecutor, so he has carefully stayed the hell away from the kind of quizzing/coaching of his staff that, oh, a certain recent President did with his staff members about their grand jury testimony, which led in large part to his impeachment." Since, ya know, Option Number Four is what the law requires, and doing anything else would possibly create obstruction of justice problems, or at least put Dubya and probably others in the Administration at risk of being accused of that pretty much no matter what, I think Option Number Four ought to be at least considered as a possibility.

A headline you'll never see in the NYT: "President Bush obeys law again today."

I swear there must be people at the NYT whose blood pressure is going up ten points for every day Judith Miller stays in jail — not out of concern over her, but out of the frustration that she's causing them. She needs to take pity on them and obey Judge Hogan's order, so the prosecutor and grand jury can finish up and either indict or no-bill, lest her colleagues explode with frustration. They are not at all doing a good job in the meantime of waiting.

Saturday, July 23, 2005

Dubya should use the Roberts nomination to end "Estradification" forever

Todd Zywicki has an interesting post up over at The Volokh Conspiracy on

what some Republicans are calling "Estradification" — requiring the Justice Department to turn over internal legal memoranda written by Roberts while he worked in the Solicitor General office. The refusal by the White House to surrender these sorts of documents was the basis for the Estrada filibuster (hence the name) ....

Prof. Zywicki notes that he hadn't "found any legal commentators who think that requesting these sorts of documents is appropriate," and that "[d]uring the Estrada filibuster seven former SG's of both parties spoke out against these requests and the use of the filibuster in relation to it." [Edit: Actually, the letter was written by former Clinton SG Seth Waxman on behalf of every living ex-SG as of the date of the letter in 2002, from both political parties, going back to JFK's SG Archibald Cox; and I'm quite sure the only additional ex-SG as of today, Ted Olsen, would concur as well.] Now, perhaps Prof. Zywicki was trolling for Schumerites, ladling out some chum when he wrote, "my impression is this is one of those places where there is fairly uniform agreement that it seems like a bad idea to go there." But sure enough, he's hooked a few in his comments, where variations of Sen. Chuck Schumer's "He's got to fill out his application fully to get the job!" meme are being asserted with apparently straight faces.

I reprint here a slightly edited version of the comment that I left on Prof. Zywicki's post, followed by a closing recommendation to our President and the Senate Republican leadership:

---------------

John G. Roberts, Jr. has argued dozens of cases before the Supreme Court — performing under the brightest public spotlight a lawyer can ever have shined upon him. He's written, or been involved in the writing of, hundreds of briefs that are available to the public. His academic and employment records are extraordinary and known to all. The FBI has thoroughly investigated him before and will do so again; these investigations include interviewing hundreds of people he's interacted with, and if there are any red flags found, the Senate will have the benefit of knowing about them. As a lawyer and a judge, John Roberts has interacted with hundreds of professionals, including prominent Democrats, who have had a thorough opportunity to get to know his capacities and his character, and who have a sound basis to share with the Senate their considered opinions about his fitness. In sum, there is a more than adequate basis to evaluate his fitness for the Supreme Court bench without having to start trampling fundamental principles of justice — and the attorney-client privilege is certainly one of those, even before you add in the constitutionally important dimension of federal separation of powers.

Shredding these privileges would hurt the public. Effectively disqualifying the most public-service-minded lawyers from nomination to the federal bench, on penalty of having to waive or see trampled the privileges associated with their advice and work product, would drain a huge fraction from the pool of potential nominees, including many of the very best and most qualified.

Historically, nominees to the Supreme Court, other federal courts, and many other positions requiring Senate consent — including many lawyers who've practiced for the government — have been confirmed or rejected on the basis of a tiny fraction of the evidence that this Senate will have about Judge Roberts. The Presidents who've nominated those lawyers have never, ever been required to produce privileged documents in whose creation these nominees have been involved. Was the Senate ignoring its manifest duties in all those hundreds and hundreds of confirmations over the decades since the founding of the Republic? Or is Estradification a contrived excuse for a partisan witch hunt?

Liberal special interest groups insist that they want to ensure that Judge Roberts will be sufficiently committed to protecting rights; yet to show that, they insist that the President who nominates him forfeit the rights of the Executive Branch. Rights for thee and not for me? Who's not respecting fundamental rights here?

It's hugely amusing to me that many of the same people who'd eagerly abrogate attorney-client and executive privileges here think reporters ought to have an absolute privilege they can use to shield law-breakers. Perhaps Judge Roberts should just leak his privileged documents to Judith Miller, huh?

I can think of absolutely no better provocation for the Republican leadership in the Senate to employ the "nuclear option" than a Democratic filibuster based on such a transparently bogus ground. I believe that the American public does have an adequate understanding of attorney-client privilege to appreciate just how fundamentally wrong this "Estradification" has been and would be. The Dems would lose big not just on the Senate vote count, but in the eyes of the public. Surely the Senate Democratic leadership is not that stupid, but if they are, I'd say, "Bring it on!"

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My closing taunt in my comment on Prof. Zywicki's post was not just rhetorical. Perhaps it would be premature, but I wish that Dubya would re-nominate Miguel Estrada to the DC Circuit to fill the seat that Judge Roberts may leave open. Mr. Estrada probably doesn't want the headache, and might again withdraw from consideration. Certainly he's had more than his fair share of unjustified grief already. But it would be a good way of making the point — in a headlines-grabbing and -holding manner, with as much possible public attention as can be generated — that the federal bench has already been deprived of one damned good nominee for the most sorry, contemptible, and indefensible of reasons.

The Administration and the Republican leadership ought to simultaneously announce that they're not going to crater on the Dems' demands made in connection with Judge Roberts' nomination, and that they're absolutely prepared to use the "nuclear option" to break up any filibuster purportedly waged on account of their refusal to waive attorney-client, work product, and executive privileges.

"Estradafication" ought never, ever happen again; a precedent against it should be clearly set; and the Roberts nomination strikes me as a very good one to do it in.

This is a winning issue for Dubya because the American people are not as stupid as Sen. Schumer apparently thinks they are. And now — while the Roberts nomination is still in its honeymoon, while the Dems are still flailing around, and before their special interest groups have worked up a full lather with the inevitable cooperation of the MSM — would be exactly the time for Dubya & Co. to take the offensive on it. Frankly, it's a fight that needs to be picked, and now's the time.

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UPDATE (Sun Jul 24 @ 4:45am): Duncan Currie also writes about this topic in the online version of the Weekly Standard. Reading his article, I have three reactions: First, it's a serious mistake for Republicans to draw comparisons between the Dems' present demands for documents relating to Judge Roberts and Dems' previous demands for documents pertaining (arguably) to the Bolton nomination. The situations are not comparable, the arguments as to the documents' purported relevance is completely different, the precedents are different, and the privileges being asserted aren't at all the same. The comparison should be to Estrada, period. Second, Republicans should stress than any of three separate legal privileges — attorney-client, attorney work product, and executive privileges — would block production of these documents. But after making that point briefly, the main focus should be on attorney-client privilege. People understand that, at least on the most basic level. Executive privilege is poorly understood by the public, and probably half of the lawyers in the country couldn't tell you the difference between attorney-client and attorney work product privileges. Third, don't dribble out some documents and try to cut compromise deals with Kennedy/Kerry/Schumer/Leahy on this. Take the offensive; tell them on national TV: "Not only 'no,' but hell no, never, period, and you should be ashamed for even asking! And for our next witness to explain why, we call Seth Waxman, Solicitor General from the Clinton Administration."

Friday, July 22, 2005

Slate senior editor Dahlia Lithwick has responded by email to my post from yesterday in which I challenged her assertion that Supreme Court nominee John G. Roberts' opinion in the Hedgepeth shows that "he seemingly finds arresting [twelve year old girls] for French-fry possession to be a cornerstone in good parent-child relations." I wrote, and continue to believe, that in so stating, Ms. Lithwick was telling a deliberate lie about Judge Roberts' views, of the same sort that anti-Roberts interest groups are peddling as a talking-point about this case; that contrary to her statement, in context Judge Roberts' opinion clearly shows that he thought the DC Metro's policies to be foolish and unwise; and that nothing in the opinion could support the contrary conclusion asserted by Ms. Lithwick:

My challenge is for you to either substantiate your statement with even a single paragraph from the opinion itself which even "seemingly" supports the view that Judge Roberts saw anything "good" (or wise or appropriate or admirable) in the local law and policies being challenged — or else admit that you can't.

Reprinted in full here with her permission is Ms. Lithwick's email reply from this morning:

Dear Mr. Dyer

Thank you for your thoughtful note.

It would seem you don't agree with my characterization of Judge Roberts' opinion in Hedgepeth. As you are aware, having read the opinion, Roberts concludes with the line, "that [no-citation] policy is rationally related to the legitimate governmental interest in ensuring parents are notified of their child's trangressions."

As you may surmise, I do not agree that there is even a rational relationship between the two. I find the notion that "detention until the parent is notified and retrieves the child" is a rational way to "correct
straying youth" to be quite preposterous and wished to suggest as much to readers in a humorous fashion.

Your note suggests that you do, in fact, understand that I made this point through the use of a literary device called "hyperbole" or "exaggeration."

You may not agree that the "snark, satire, sarcasm, exaggeration" employed therein are humorous. And you may not agree with my characterization of Roberts' legitimate governmental interest analysis. Certainly in future I will try much harder to rise to all objectively measured international levels of humorousness. But I do thank you for keeping me informed as to when I have performed in a substandard fashion.

Congratulations on your terrific blog.

Dahlia

I cannot fault Ms. Lithwick for the graciousness or timeliness of her reply, and indeed I thank and compliment her for both. But I respectfully submit that she's ducked my challenge, failed to support her original statement, and instead tried to change the subject to a legal point on which she's also badly wrong.

*******

Let's be honest, please, and all agree on the obvious: The anti-Roberts interests groups want to use the facts of this case to paint Judge Roberts as an insensitive, callous ogre. They want to impute to him an attitude that most Americans will find repulsive. Thus, their short-form talking points — like Ms. Lithwick's comment yesterday — certainly don't discuss any constitutional law. Compare:

Yesterday:

Today:

[Judge John Roberts] doesn't appear to be crusading for a wholesale national retreat to the good old days of executing miscreant 'tweens (although he seemingly finds arresting them for French-fry possession to be a cornerstone in good parent-child relations).

I find the notion that "detention until the parent is notified and retrieves the child" is a rational way to "correct
straying youth" to be quite preposterous and wished to suggest as much to readers in a humorous fashion.

The first statement is an imputation of a specific, ugly attitude to Judge Roberts — an attack on his character. The second is an outline of a legal argument — one that's wrong, but that at least makes some reference to the relevant legal standard (here, "rational relationship" review for constitutionality). The first statement is indeed hyperbolic and exaggerated, and perhaps funny. But it isn't a way of making the same point that's in the second statement.

"[C]ornerstone in good parent-child relations" — that's a phrase that refers to personal values. "Cornerstone" here means something essential, upon which other things are (metaphorically) built. "Good" presumably is a synonym here for "wise" and "proper" and "appropriate" and "admirable." Even stripping away the sarcasm and hyperbole, Ms. Lithwick asserts as a factual matter that Judge Roberts affirmatively endorsed the DC Metro's zero-tolerance, no-citation policy — that he not only endorsed it as being a good, wise, proper, appropriate, and admirable way for the government to promote parent-child relations, but also as being an essential basis for good parent-child relations. That's telling a lie about what Judge Roberts actually said — it's the opposite of what Judge Roberts actually said about the wisdom of the policy — and Ms. Lithwick's dressing that lie up in snark and hyperbole doesn't suddenly change that lie into truth. Nor does her advancing a legal argument today change her personal attack from yesterday into a legal argument.

*******

On to the law, then. Every American lawyer has had drilled into him/her that the Supreme Court's "rational relationship test" is by far the easiest test to pass in all of constitutional law. A search I just ran on the collected opinions of the U.S. Supreme Court shows that the phrase "rational relationship" turns up in 122 different cases — almost always in the context of a stupid, unwise law or regulation nevertheless being found constitutional. To qualify, the purported justification for the law or regulation need only find "some footing in the realities of the subject addressed by the legislation," and that can be an unwise, unfair, illogical, unarticulated, speculative, unsupported, overgeneralized, imprecise, illogical, unscientific, unjust, and even preposterous justification:

We many times have said, and but weeks ago repeated, that rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." Nor does it authorize "the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Further, a legislature that creates these categories need not "actually articulate at any time the purpose or rationale supporting its classification." Instead, a classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."

A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." A statute is presumed constitutional, and "[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it," whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it "'is not made with mathematical nicety or because in practice it results in some inequality.'" "The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific."

Heller v. Doe, 509 U.S. 312, 319-21 (1993) (citations omitted). I picked that case more or less at random, and partly because it was written by Justice Anthony "sweet mysteries of life" Kennedy; but there are dozens and dozens just like it.

The bottom line is this: When you're mounting the sort of constitutional challenge to a statute or regulation or policy that young Miss Hedgepeth's parents were, unless you can convince the courts that some higher level of scrutiny than "rational relationship" is required, you're almost certainly going to lose. Young Miss Hedgepeth had excellent lawyers for her appeal; they knew this; they spent all their efforts trying to avoid "rational relationship" review, because they knew that under that standard, they'd definitely lose. But they failed, so they did lose.

At least what Ms. Lithwick came up with today as a criticism of Judge Roberts is a legal argument, rather than the sort of wholly unjustified ad hominem attack she made on him yesterday. But it would get an F on any con law exam at any law school in the country. Even Larry Tribe would give you an F if you tried to say on one of his exam papers that "preposterous" is enough to negate "rational relationship" under current law; he might agree with Ms. Lithwick that that's what the law ought to become if they appeared together on some cable news show, but I seriously doubt that he has the juevos to ever sign a brief so stating, for if he did, his credibility as a constitutional scholar would evaporate. Not even Justice Kennedy would go so far in making legislation subject to the whims of judges; in fact, I don't think you could get Justices Stevens or Ginsburg to sign on to that, nor would Justices Brennan or Marshall in their day.

Still, I much, much prefer this sort of argument. When you say to the American people, "Judges should be able to overturn laws based on their own personal whims about what's wise and fair, and I oppose Judge Roberts because he disagrees with me on that," then the American people can squint hard at you, tilt their heads to one side, and decide whether to cock their shotguns before escorting you off their premises.\*/ That's much better than telling a lie — which I continue to believe Ms. Lithwick did yesterday.

----------------

\*/That's snark, sarcasm, exaggeration, and hyperbole. I no more want to see Ms. Lithwick threatened with a shotgun than I would want to see one of my daughters arrested for eating a french fry.

Thursday, July 21, 2005

A challenge to Dahlia Lithwick

[Judge John Roberts] doesn't appear to be crusading for a wholesale national retreat to the good old days of executing miscreant 'tweens (although he seemingly finds arresting them for French-fry possession to be a cornerstone in good parent-child relations).

Snark, satire, sarcasm, exaggeration — these all have their places, and from time to time I'm a willing practitioner of each. As rhetorical devices, they're effective and defensible only if they are grounded in at least a grain of arguable factual truth.

Regular readers of my blog will know that I don't use the term "liar" lightly. But I assert that you, ma'am, have told an outright lie in the parenthetical quoted above, and I call you on it.

The LA Times article that you link is a partial reprint of what Judge Roberts wrote in the Hedgepeth case. The text there not only fails to support your assertion, it entirely refutes it. And although (as my friend Patterico has demonstrated) the LAT has elsewhere engaged in the same misrepresentation that you did, one could at least defend the LAT's writers and editors as being merely stupid instead of dishonest. Perhaps they never actually read the opinion, or lacked the training to understand it.

But you, Ms. Lithwick — a senior Slate editor, a graduate of Yale University and Stanford Law School who had incontrovertible access to the facts that you've misrepresented — cannot plead stupidity. I therefore say that you, ma'am, are just a liar.

My challenge is for you to either substantiate your statement with even a single paragraph from the opinion itself which even "seemingly" supports the view that Judge Roberts saw anything "good" (or wise or appropriate or admirable) in the local law and policies being challenged — or else admit that you can't. If all you can point to is the raw outcome of the case — in which the district judge, Judge Roberts, and two other DC Circuit judges all refused to find a constitutional violation, yet all expressly condemned the local law and policies as "foolish" or worse — then you surely must explain why that result is a better indicator of Judge Roberts' views than everything else he wrote in the opinion that is absolutely contrary to the views you impute to him.

I expect that you'll neither defend yourself nor admit that you were lying, and that instead you'll simply ignore this. I'll email you and your publication to try to bring it to your attention, but my blog is a small one (barely 1.5 million "page views" since 3/10/04), and although you've linked to it in the past, this time you'll probably just pretend that I don't exist — that's no harder than pretending Judge Roberts has said the opposite of what he actually said, is it? Still, my comments section is open, ma'am, and you certainly have plenty of bandwidth of your own to defend yourself. Can you?

Wednesday, July 20, 2005

A response to Randy Barnett's essay on the Roberts nomination

I like Randy Barnett, the Boston University law professor who blogs on The Volokh Conspiracy, and I'm not accusing him of being out of touch in general with the real world. But I do think this well-written and -argued essay about the John G. Roberts nomination betrays some of the shortened perspective that's most often found in the tall ivory towers (emphasis his throughout):

What is important is not that we don't know, but why we don't know any of this or anything else about the sort of justice that John Roberts will be, other than a very smart one. I am not concerned with his policy preferences, which I assume, from all accounts, are generally conservative, but with how he thinks a Supreme Court justice should go about interpreting a written constitution. In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy....

Writing an article, giving a speech, or even writing a column or blog about how the Constitution should be interpreted — taking a position, and defending it against all comers — is hard. Not the same kind of hard as standing up to judicial questioning in oral argument, to be sure. Almost completely different, actually. It requires a knowledge of one's own principles and an ability to articulate them and defend them publicly against contrary views.

This is a type of trial by ordeal that hones one's beliefs and commitments. Consider it the academic equivalent of briefing and oral argument about one's judicial philosophy. Even engaging in private debate is no substitute for public disclosure and scrutiny by other scholars. John Roberts has been able somehow to avoid this ordeal throughout a long and distinguished career. This degree of avoidance would seem to have taken effort and discipline.

I understand Prof. Barnett's frustration, but the only cure for it would seem to be limiting Supreme Court nominations to "other scholars" — i.e., to law professors. He acknowledges that this cure would have substantial political costs — that if, for example, Dubya had nominated former professor/now Circuit Judge Michael McConnell, the confirmation fight would probably have been made tougher. But I fear that long after the confirmation battles are over, this cure would be worse than the disease.

I have enormous regard for those who write, lecture, and blog about the law, and I've done some of those things myself. I certainly agree that "taking a position" and defending it as part of that writing, lecturing, or blogging is hard. But with due respect, I submit that doing law is substantially harder, and ultimately more meaningful, than just writing, lecturing, and blogging about it. To be an effective counselor for one's clients, a practicing lawyer has to not only be able to understand and articulate his own principles, but to understand and articulate other sets of principles as well, including (but not limited to) his opponent's in that particular case. As an advocate, he then may have the further duty and considerable challenge of "defend[ing] against all comers" a set of principles that aren't even his own, but that his client and/or the circumstances have dictated.

Prof. Barnett acknowledges that "standing up to judicial questioning in oral argument" is a different "kind" of "hard" than, say, the ponderous debates among law professors arguing with each other through law review articles; and academic debates can indeed have consequences and rewards (think tenure) that motivate their participants. But I doubt that Prof. Barnett intends the offense to us practitioners implied by his suggestion that real world legal fights count less, or are performed with less skill and vigor, than academic world legal fights. I actually suspect that the contrary is more often true, especially when one's in the particular sort of legal trenches in which John G. Roberts has been plying his trade. "Trial by ordeal" in the ivory towers? How about "trial by ordeal" in the courtroom? Which is more relevant to judging?

Quite a few practitioners find their real world legal fights to be sufficiently taxing that they're not left with much energy or inclination to make speeches, join advocacy groups, testify before Congress, blog, etc. Even if they are, however, sometimes discretion, exercised through "effort and discipline," may indeed forbid them from taking — particularly for no reason other than the joy of abstract debate — high-risk, high-profile positions that may jeopardize their clients' interests. In fact, one might aptly describe the disciplined exercise of such caution as "being judicious," which would seem to be a plus for a judicial nominee rather than a minus.

"[P]ublic disclosure and scrutiny by other scholars" — well, let's broaden that last word to include not just scholars, but anyone interested in the law and legal system — does indeed make it easier for us outsiders to try to draw conclusions as to what a nominee's core principles and philosophy are. And thus it's easier for outsiders to assess not only academics like Prof./Judge McConnell, but longer tenured judges. But it's a serious mistake to conclude from the fact that we in the public can't easily see a nominee's core principles and philosophy that they don't exist, or that they're underdeveloped or random, or that they're contrary to those which Dubya has promised during both of his presidential campaigns that he'd seek in his judicial nominees. As I've argued at more length last night, Dubya and his staff have had the opportunity that the rest of us lack to assess, through his privileged writings and the views of trusted superiors and co-workers, John G. Roberts' demonstration of his principles and philosophy in action — under more than hypothetical stress, with consequences far greater than tenure, and on exactly the kind of issues that are brought before the United States Supreme Court (because that's exactly where he's been practicing). Surely Prof. Barnett doesn't mean to suggest that a long-time client has a poorer opportunity to assess his long-time lawyer than one academic has to assess another, does he?

I'm glad that Judge Roberts' career includes a year clerking for Judge Friendly in New York for the commerce-heavy Second Circuit, far from both the Rivers James and Potomac. I'm glad that in addition to helping the Executive Branch formulate its legal policy and defending it in the courts, he's also had real-world private clients who have to make payroll and justifiably bitch about their legal fees. The guys over at Power Line said on Hewitt's radio show last night that they have good grounds to believe that Judge Roberts reads blogs (including theirs, and if so, probably also the VC). So am I much troubled that he doesn't also write one, or that he's never been a law professor or an interest group speechifier? Nuh-uh — that doesn't trouble me for purposes either of assessing his suitability as a nominee or predicting his likely performance once he's confirmed as a Justice.

Do I wish that I could personally sit down with Ken Starr and discuss in detail the "I saids" and "he saids" between him and John Roberts that went into formulation of the Office of the Solicitor General's many recommendations and then final positions on complex questions of law before the Supreme Court? Well, yeah, sorta; but I can't, and neither can Prof. Barnett or the senators. Do I wish I could ask Chief Justice Rehnquist for his take on what kind of legal reasoning comes naturally to his ex-clerk John Roberts? Yes, definitely; but I can't, and neither can Prof. Barnett or the senators. Because he's been a practitioner instead of a scholar, those aspects of John Roberts' legal career are shielded from us. But they weren't shielded from Dubya, and it would be a horrible mistake to disqualify from SCOTUS consideration everyone who's actually done law instead of just talking and writing about it.

Tuesday, July 19, 2005

Why I'm not worried that Judge John G. Roberts will become "another Souter"

Conventional wisdom is that all other things being equal, the single best predictor for how a SCOTUS nominee will behave as a Justice is that nominee's written opinions as an appellate judge on a lower court. Even then, because those lower courts lack the full range of powers that SCOTUS has, there are limits to how confidently such predictions can be made. But many conservatives had hoped that Dubya would pick a nominee (e.g., the Fifth Circuit's Edith Jones) with a long, deep record of writing on controversial issues from, for example, a seat on one of the federal courts of appeals.

John G. Roberts doesn't have that kind of long, deep written record as a judge on the DC Circuit — and that may leave some conservatives uncomfortable about the possibility that he'll become "another Souter." But for reasons that, oddly enough, are closely related to the attacks that Judge Roberts' opponents are certain to make, I think that conservatives ought not be concerned about this.

*******

The flip side of Judge Roberts having a thin public record as a judge, of course, is that there's less of a paper trail for Judge Roberts' opponents to pick through and distort; indeed, this was the "stealth candidate" rationale advanced by the Bush-41 Administration for the Souter nomination that, in hindsight, backfired so badly. Lacking a long paper trail of prior judicial opinions, Judge Roberts' opponents will instantly flip to alternative strategies.

First, they may decry the nominee's "lack of judicial experience." This is singularly unpersuasive with Judge Roberts, though, because his two years on the DC Circuit are nontrivial, he'd have been there since 1993 had not Bush-41 lost, and his other academic and career credentials are so varied in type but extraordinary in quality. Indeed, if his only credential were the extraordinary number of cases he's personally argued and won in the Supreme Court as an advocate, that alone would probably be enough to qualify him for a seat on that bench! So this strategy is unlikely to be very appealing or effective.

A second alternative strategy is available to the Dems precisely because Judge Roberts has spent much of his career as a public servant — first, as a lawyer whose clients have most frequently been the President and the United States, and more recently as a judge. Using this fact, I guarantee you that opponents of this nomination will (as they did with Miguel Estrada) manufacture a bogus dispute by demanding executive-privileged documents that Dubya won't and can't turn over, and nor could any President without forever damaging our federal separation of powers system. Senators are no more entitled to seize, publish, and dissect John Roberts' privileged advice to the Executive Branch than they are entitled to seize, publish, and dissect his correspondence with other judges on the DC Circuit; but that won't stop them from trying. And — again as with Estrada — no matter what he says during his confirmation hearings, they'll contend that Judge Roberts has been "insufficiently candid" based on his refusal to let them put words into his mouth, or to answer "stopped beating your wife?" questions, or to pre-commit on or address the merits of "pending or impending" cases that a judge may not ethically discuss.

Third, Judge Roberts' opponents will try to tag him with public positions he's taken on behalf of clients, either governmental or private-party, before he became a judge. As a high-profile and active appellate advocate, John Roberts has, of course, advanced many arguments and taken many positions on behalf of the Reagan and Bush-41 Administrations and on behalf of Hogan & Hartson's private clients in what have been, by definition, high-stakes and hugely controversial cases. His name is on, and he's been personally involved in writing, a great many briefs, and he's also orally argued many of those cases. Opponents of his nomination will therefore impute arguments and positions to him, personally and in full, whenever it fits their goal of portraying him as "extremist." (Indeed, they've alreadystarted). This may be a somewhat effective strategy, but it's extremely cynical and unfair, and it will ultimately fail because it ignores what even the general public understands to be the most basic truth of lawyering: Whenever John Roberts has appeared in courts as an advocate, he's been expressing views as an agent on behalf of his principals, not on his own behalf. That is his and every advocate's fundamental duty — both when the advocate personally agrees with his principal and when the advocate personally disagrees (and has privately argued against that argument or position). The fact of the matter is that you can tell something about how clever and competent a lawyer is by observing his oral and written advocacy, but you can't really tell what's behind the mask, what's inside the advocate's heart. This might actually end up briefly troubling conservatives: Just as liberals can't conclusively assert that everything Principal Deputy Solicitor General Roberts wrote and argued as a public advocate for the Bush-41 Administration reflects his personal beliefs, neither can conservatives necessarily rely upon that either!

*******

But worry not, my conservative friends, because this actually gets me back around to why I'm not terribly worried that Judge Roberts will turn out to be "another Souter."

Through documents and through first-hand opinions of solid and reliable conservatives who've worked closely with John G. Roberts — in his capacity as a private counselor, and not just a public advocate — Dubya does have full access to what Judge Roberts has thought and said when he's been at his most candid, under pressure and entirely outside the public spotlight.

Hugh Hewitt pointed out on his radio show tonight, entirely correctly, that when John Roberts was a lawyer for the Reagan Administration, that Administration was under legal siege: times were tough, stakes were high, and wise, private legal judgments were desperately needed. Seeing from a client's viewpoint how a lawyer functions as a counselor — how he privately answers key questions like "Is this wise? Is this principled? What are the downsides? What do we really think, public façade aside?" — is extremely revealing. Quite arguably, this sort of information can tell one even more about how a nominee will perform in the future than what he's written — always for publication and usually after compromise with others on the bench — as a judge on a lower appellate court.

Thus, through people like former Solicitor General Ken Starr (and, perhaps, Chief Justice Rehnquist?) with whom John Roberts has worked very closely, and through privileged documents that Judge Roberts must have written himself while a government lawyer, Dubya and his staff certainly know vastly more about Judge Roberts' character and core beliefs than, for example, Poppy Bush ever could have known about David Souter or than the Gipper ever could have known about Sandra Day O'Connor and Anthony Kennedy. Instead, Dubya and his staff have the same kind of first-hand, pertinent, and highly reliable knowledge about John Roberts that Richard Nixon and his staff had about William Rehnquist. And that worked out pretty well over time, didn't it?

Again, for reasons of precedent and preservation of executive privilege, Dubya won't and can't share those private, confidential documents, nor those private, confidential personal assessments, with you, me, or the Senate. But he has them; they're incredibly meaningful; and we have every reason to believe that Dubya has made very, very good use of them. Don't misunderestimate your president, my conservative friends. Rejoice and have faith!

-------------------

[This post has been substantially edited for clarity after a decent night's sleep. — Beldar.]

[B]y far the single most important quality that the new Justice must have, if Dubya is to keep his campaign promises, is the willingness to write words like these: ... I am not empowered to fix this. That's the essence of what Justice Thomas said [in his dissent in Lawrence v. Texas], and it's exactly what the new Justice has to be willing to say — even when, and most especially when, the temptation to reach out and fix things is nearly overwhelming.

No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later — all for
eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as "foolish," and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.

Bingo! This is a very fine example of what I was talking about. If you read the entire opinion, you'll see a tightly constructed, well-written and -reasoned piece of judicial prose that (as such things go) is remarkably unstuffy, and that meticulously follows existing precedents to reach its conclusion. That fits, of course, with Judge Roberts' academic and professional track records, and it's reassuring. But to paraphrase Renée Zellweger's character in Jerry Maguire: He had me at "[n]o one is very happy ...."

(One thing I'll add about Judge Roberts' record that I haven't seen
mentioned elsewhere, but that I can confirm as someone who was applying
for circuit court judicial clerkships at about the same time Judge
Roberts was: clerking for the late Henry J. Friendly
of the Second Circuit was considered one of the half-dozen absolute
"plum" clerkships in the country, in some ways more impressive than his
later clerkship for then-Associate Justice Rehnquist.)

As a blogger, a lawyer, a conservative, a conservative lawyer-blogger, and the father of two french fry-eating girls ages ten and fourteen, I enthusiastically support Judge Roberts' nomination.

And I thank and commend President Bush for a superb choice that does indeed keep the promises he made in both of his presidential campaigns. With respect to those who had their knickers all twisted about whether Dubya would blow this opportunity, I say: "Misunderestimated him again, dintya?"

WaPo on the Fifth Circuit's potential SCOTUS nominees

An interesting and potentially informative news or even feature article could probably be written about the fact that five of the names rumored to be on President Bush's list of potential Supreme Court nominees are judges on the United States Court of Appeals for the Fifth Circuit. But this one in today's WaPo isn't such an article.

Sometimes this article is sloppy, as in its introduction:

It wasn't all that long ago that the U.S. Court of Appeals for the 5th Circuit was on the cutting edge of the civil rights movement, a liberal pocket of scholars aggressively enforcing the Supreme Court's demand for speedy desegregation in the Deep South.

But things have changed mightily in 20 years. Today, the New Orleans-based appellate court is considered among the most conservative in the land — but it is still at the center of politics and history.

Twenty years? Umm, try 40-50 years. This looks like an editing error; later, the article correctly refers to Jack Bass' 1981 book Unlikely Heroes about "a group of four legendary judges [who] dominated the court in the 1950s and '60s, aggressively interpreting the Supreme Court's civil rights rulings to accelerate racial equality in a resistant South."

Sometimes this article is just wrong, as when it says of the recentMiller-El decision that Justice Souter's opinion "said the 5th Circuit decision was a 'dismissive and strained interpretation' of how the Supreme Court had previously ruled" — basically an accusation that the Fifth Circuit was monkeying with the law. What Justice Souter's opinion actually said was (citations omitted, emphasis mine):

The Court of Appeals concluded that Miller-El failed to show by clear and convincing evidence that the state court’s finding of no discrimination was wrong, whether his evidence was viewed collectively or separately. We find this conclusion as unsupportable as the “dismissive and strained interpretation” of his evidence that we disapproved when we decided Miller-El was
entitled to a certificate of appealability. It is true, of course, that at some points the significance of Miller-El's evidence is open to judgment calls, but when this evidence on the issues raised is viewed cumulatively its direction is too powerful to conclude anything but discrimination.

So Justice Souter actually was disagreeing with a Fifth Circuit panel's reading of the evidence presented by one side in a single case — not with the Fifth Circuit's (or even just that panel's) interpretation of any principle of law. Even then, he acknowledged that "judgment calls" were involved on that evidence. And the tone here is no harsher than in most any Supreme Court reversal of a circuit court opinion; they're pretty much finding something wrong every time they reverse, huh? But hey, the MSM party line was that the Miller-El decision was some kind of deliberate and unusual "rebuking" or "chastising" by the Supreme Court of the Fifth Circuit — a finger-waggling that might turn into a spanking. It's a whole lot easier to find a spotlight-hungry law professor or interest-group spokesman to give you a good speculative quote suggesting that sort of judicial catfight than it is to actually find, umm, you know, the Supreme Court actually saying that it's rebuking the Fifth Circuit for screwing up the law.

Elsewhere, the article is partly right about basic facts, but still badly misleading by omission. It correctly notes that Fifth Circuit Judge Edith Jones would be a controversial nominee in part because of something she wrote in a recent abortion case (ellipsis by WaPo):

Of the five judges mentioned for the Supreme Court, Jones, 56, is considered by lawyers who practice before the 5th Circuit to be the most intellectual, the most abrasive and the most ideological. Although she is a favorite of the Christian right, both Democrats and Republicans question whether Bush would risk the inevitable Senate fight if he nominated her.

In an opinion last year, she criticized the Supreme Court on Roe, writing: "The perverse result of the Court's having determined through constitutional adjudication this fundamental social policy ... is that the facts no longer matter. This is a peculiar outcome for a court so committed to 'life' that it struggles with the particular facts of dozens of death penalty cases each year."

You'd certainly think from reading this WaPo characterization that Judge Jones cast an anti-abortion vote in this case, wouldn't you? But you'd be 100 percent wrong. In fact, as I wrote last month, Judge Jones personally and unilaterally dropped the case from the Fifth Circuit's oral argument calendar — actually taking heat from "Christian right" anti-abortion groups for doing so — and then authored a unanimous panel opinion that rejected an attempt by Norma McCorvey, the original "Jane Roe," to re-open Roe v. Wade. Why, I wonder, could the WaPo find room to quote Judge Jones at length,
but then conceal through omission the way she actually voted? And why did WaPo choose to replace with an ellipsis this particular phrase: "which affects over a million women and unborn babies each year"?

Judge Jones' decision to also write a separate concurring opinion criticizing Roe was indeed unusual and highly provocative, but it's by no means all of the story. Arguably, it's not even the most important part of the story, because lots of folks have criticized Roe, but Judge Jones' actual vote in the McCorvey case, as conveyed through her opinion for the panel, is one of the most vivid examples I've ever seen of a judge strictly following binding law with which he or she personally disagrees. And the concurring opinion's final sentence was perhaps the most provocative of all, precisely because it strays outside the subject of abortion into a broader, very blunt criticism of the Supreme Court:

That the Court’s constitutional decisionmaking leaves our nation in a position of willful
blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.

Now, that would be a perfectly ordinary thing to read in a blog (a fairly wordy one like mine, anyway), or in a law review article, or maybe in a Scalia or Thomas dissent. But it's a genuinely remarkable thing to read in the official collected writings of United States Circuit Judges, a/k/a the Federal Reporter, Third Series, friends and neighbors. It's not quite the equivalent of Edith Jones shouting, in eager anticipation of a hotly contested confirmation hearing, "In yo' face, Chuckie Schumer! And lookout Justice Kennedy, I'm gonna whup up on yo' substantive due process butt!" But yeah, this would be a very rare example of upstream "chastising/rebuking." Now, it could just be the heartfelt statement of one judge's views; and the timing could be a complete coincidence. But it sorta reads like grist for a very aggressive set of talking points for political conservatives whose concerns about the Supreme Court aren't at all limited to abortion, doesn't it? So why did WaPo leave this, and the statistic about "babies," out? I might be wrong, but I think I smell a reporter regurgitating partisan talking points and pre-selected (Dowdified) partial quotes spoon-fed only from the other side here, folks. Well, heck, if you only look at one side's stuff, you miss at least half the drama!

And of course, WaPo continues the bloodthirsty "Texas Death Factory" meme, since that's a convenient and time-tested way to beat up on Dubya, his home state, its judges, and the horses they all rode in on:

Because it covers Texas — which has the highest execution rate in the country — the [Fifth Circuit] sees a lot of death penalty appeals. Most frustrating to foes of the death penalty and to civil rights lawyers is that the court has a record of rarely siding with defendants.

Oh, please. Whether it's in the Fifth Circuit or elsewhere, criminal defendants — either on direct appeals from convictions in the federal court system or in habeas corpus challenges to state-court convictions — always lose most of the time. Their lawyers are frustrated everywhere. But one reason that lawyers challenging death penalty convictions from Texas are particularly frustrated is that the Texas state trial and appellate courts have by now litigated almost every conceivable legal issue that can come up in a death penalty case, and for the most part either the State's positions have been repeatedly sustained by the federal courts or, when the State's positions have been rejected, the local prosecutors have made appropriate adjustments to follow the law. Lots of Fifth Circuit reversals would mean the system is consistently broken at the state trial- and appellate-court level. The one part of the "Death Factory" meme that is partly true is that Texas state-court prosecutors and trial judges have gotten really good at following the law in death penalty cases, and the prosecutors or state AGs have likewise gotten good at defending their convictions on appeal, and the Fifth Circuit has been pretty efficient in resolving those habeas appeals and clarifying legal issues as they've come up. It's not exactly an assembly line, but neither is it re-inventing the wheel with every death penalty case either — and it shouldn't be. All of which is to say, the absolute number of cases reflect the state's large population, the number of capital convictions represent its juries' belief in the appropriateness of that punishment for the most outrageous crimes, and the system is working relatively effectively and efficiently, all as Texas' citizens and legislators intend. If a Houston or Dallas jury sentences you to death, the odds of your actually getting a lethal injection in less than a decade have become quite good — and that's something that most Texans want to be both true and common knowledge, because death penalties that are never actually administered really suck as deterrents to capital crimes.

Maybe WaPo staff writer Lois Romano got stuck with an assignment she didn't want or didn't like — "Hey, lookee, five of the names written on trial balloons all come from the Fifth Circuit, go write a story about that" — and the best she could come up with before her deadline for this Page A8 story was this collection of superficial half-truths, talking points, and tired clichés. Figuring out whether this is a statistical fluke or something actually meaningful would certainly require some in-depth research and some original thought. I'm probably not the right person to try to do that either; my clerkship is too far in the past and my present practice in the Fifth Circuit too infrequent. But there are such people around who are genuinely knowledgeable, thoughtful, unconnected with any meme-peddling interest group, and available for consultation with full-time paid professional journalists from nationally recognized MSM outlets. In any event, WaPo should get its basic facts right, and this article fails even that test.

Not my job!

Over the course of the Supreme Court career of the Associate Justice whom President Bush selects to replace Sandra Day O'Connor, that Justice will be asked to review many, many cases in which other entities — the Congress, the President, federal and state agencies, state legislatures and state courts, politicians, voters, various private organizations and individuals — have done things which that new Justice is absolutely convinced were profoundly unwise, but yet were within the ambit of those entities' respective authorities to act.

The new Justice, like those already on the Court, will almost certainly possess superb personal qualities — he or she will be smart, hard-working, patriotic, articulate, compassionate, and so forth. The new Justice will have working at his/her beck and call some of the brightest young lawyers of each generation, fiercely loyal and energetically devoted to polishing the new Justice's own thoughts and opinions into tight legal prose buttressed by legions of impressive precedents. Though others may criticize the Justice's and the Court's results or reasoning, they rarely will be able to overturn them; the Supreme Court isn't omnipotent, but one can understand how its inhabitants might sometimes fall under the illusion that it is and that they collectively are too. And the new Justice may indeed be profoundly more wise than most of the parties whose cases come before the Court.

But by far the single most important quality that the new Justice must have, if Dubya is to keep his campaign promises, is the willingness to write words like these, which Justice Thomas penned as his entire dissent in Lawrence v. Texas (internal citations omitted, emphasis and all but final brackets mine):

I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly" [as Justice Stewart wrote in 1965 in his dissent in Griswold v. Connecticut]. If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.'" And, just like Justice Stewart [in Griswold], I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," or as [Justice Kennedy's majority opinion for] the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions."

If I'd been writing in his place, I'd have stated my revulsion for the Texas statute being challenged in Lawrence far, far more forcefully. "Cruel, bigoted, ugly, an anachronism of which the people of Texas and their state government ought to be ashamed of themselves for not having already repealed on their own." Merely calling that law "silly" or an unproductive way to spend law enforcement resources was inadequate — so I firmly believe as a matter of public policy and fundamental fairness. (And I'd simultaneously defend your or anyone's right to hold exactly the opposite policy views, or religious or personal views, or any combination thereof, about these issues.) But the strength of the language Justice Thomas used, or that I might instead have preferred, on this particular issue isn't what's most important about this dissent.

What's important can instead be expressed in similar but even fewer words than Justice Thomas used: I am not empowered to fix this. That's the essence of what Justice Thomas said, and it's exactly what the new Justice has to be willing to say — even when, and most especially when, the temptation to reach out and fix things is nearly overwhelming. The result will certainly, inevitably be that many things that ought to be fixed — by Congress or state legislatures or those other entities mentioned above — just won't get fixed, or may get bollixed up even further. Sometimes those entities are obviously falling down on the job, with heartbreaking or alarming or unfair results. But when the Supreme Court seizes power that doesn't belong to it, and exercises it in a way that can't be effectively checked by the voters or the other branches of government, then over the long run, not just the rule of law but our entire system of government are likely to perish.

We're not gods, the new Justice must be willing to say and believe. Because they aren't. There are good people on the Court now, and there are good people among the potential nominees for the soon-to-be-open seat on it. But none of them are gods. It's sufficient instead to hope for — and it's essential for Dubya to find — a new Justice with the courage and the wisdom to say, often, and despite results that he/she will find distasteful, stupid, unfair, reckless, bigoted, offensive, wasteful, unproductive, harsh, tragic, silly, counter-productive, and/or otherwise profoundly unwise: Sorry, but it's not my job.

Monday, July 18, 2005

When/whether Dubya will fire a leaker/lawbreaker

I have a high regard for Tom Maguire and his blog, Just One Minute, and for NRO's Ramesh Ponnuru. But I found myself chuckling over their parsing of Dubya's and his press secretary's various pronouncements over time regarding when and whether the President will fire someone who's accused/convicted of a crime/leak in the Plame/Wilson national security breach/circus act.

Guys: Dubya doesn't parse language and he really sucks at dissembling. He doesn't wonder what the meaning of "is" is. He's not a lawyer. Dubya is the anti-Clinton. These are some of the very things that I — and, I believe, tens of millions of other Americans — like best about him.

If Dubya concludes that someone deserves to be fired, he'll fire that someone. If he doesn't, he won't. But right now, it's too soon for him to draw a conclusion one way or the other. Explaining the decision, or the criteria for the decision, or the predicted criteria for the decision, or the evolution over time of the predicted criteria for the decision — these things don't much matter to Dubya. The decision will, but only when it's time for one.

Saturday, July 16, 2005

Same lame Plame blame game

A lawyer friend who also reads and comments here with some frequency suggested that I stay away from this topic until my blood pressure has really stabilized. But having finally caught up on my reading — there's no wifi at The Methodist yet, and I had to spend almost a week disconnected from the net, drat! — I can now comment pithily and pungently, without popping any pressurized pathways.

Any blogger, pundit, cable-TV talking head, talk-radio jock, national print or electronic media columnist or reporter, major- or minor-party chairman, or flack from any part of the socio-ecopolitical spectrum, or anyone else who claims to know all about — or even to have any deeply penetrating and almost-certainly-valid insights into — the entire Plame/Wilson/Niger/Novak stuff ... is farting through his/her hat and trying to convince you that it's gospel singing.

I'm tired of reading and listening to it, I'm tired of pretending that it's well modulated or that any of it smells sweet, and I'm still not going to play the gossip-and-speculation game about "how it's all going to turn out." In fact, the one thing we can be abso-positively-freakin'-lutely certain about is that not even any of the principals — whether Amb. & Mrs. Wilson, Messrs. Novak, Rove, Libby, Cooper, and Fitzgerald et al., Mlle. Miller, His Honor Hogan, Dubya, and/or the D.C. Dogcatcher — know how this is likely to turn out either.

So just respect the process, people!

The process is designed to figure out whether there's enough reason to believe that a crime has been committed in order to charge someone with that, and then to figure out whether he/she is guilty. The process doesn't always work perfectly, and it rarely works quickly. But it works far better than anything else anyone's come up with yet. We've been polishing it up for hundreds of years. And in this particular set of matters, it's way far from being finished yet.

The only people it's worth getting worked up about at all yet are those who've been trying to subvert or short-circuit the process. It's hard to imagine a scenario in which Judy Miller will ever be more than a supporting actress in this drama/comedy/melodrama, but right now she's seized the stage and won't let any of the other actors speak their lines, play their parts, or demonstrate whether the pistol brandished in Act 1 must indeed be fired by the end of Act 3. Judith Miller is demonstrating why there's a reason that Nature rots tomatoes and shapes them so as to minimize their air resistance and fit comfortably to hand. But right now, except for her, we don't know who deserves the tomatoes or the roses, the yawn, the golf-clap, or the wild applause.

There's a reason they call the process "due." Until the process has proceeded, the proceedings are neither properly probative nor particularly penetrable. Hence my plea to the blogosphere: Please let the prosecutor and the grand jury — and depending on their results, then possibly a trial judge and a petit jury (and then probably some appellate courts too) — just "due" it.

Beldar gets lucky

It started with a burrito and a jalapeño last Sunday night that turned out not to have caused indigestion.

Long story short: I had a wee little heart attack this week, but I'm amazingly okay amazingly soon afterwards, and I'm very glad to be home after a short hospitalization.

*******

The modest pain — a dull ache located not under my sternum, but high on my chest wall, almost over to my left shoulder joint — was not at all the "classical presentation" for heart trouble. I had some sweating, but no nausea or referred/radiated pain elsewhere, and no shortness of breath. However, I've got a strong confluence of pretty much all of the risk factors for coronary artery disease, and I had been promising myself for at least the last 15 of my 47 years that "pretty soon" I was actually going to develop some better habits to reduce some of my risks. I expected that when and if it came time to pay the piper, I'd know it without any doubts, because a heart attack is supposed to feel like an elephant is sitting on the middle of one's chest. And this pain didn't feel like that, and didn't appear to be related to exertion, and went away overnight. So I blamed the burrito.

Driving back to work during lunch hour on the following day, though, the pain was back again for about the third time, and it had gotten noticeably worse. So instead I drove to the emergency room at The Methodist Hospital in the Texas Medical Center.

It wasn't by accident that I went to The Methodist. My ex had done some of her training there while she was at Baylor Medical School, and all four of our kids were born there. And that statue in the lobby of Michael DeBakey in surgical scrubs correctly suggests that this place (like the offshoot Cooley/UT/St. Luke's rival practice a couple of doors over) has trained and maintained a couple or three full generations of some of the very best cardio health professionals in the world.

In contrast to the sirens and paramedics routine, walk-in patients aren't very dramatic. And I didn't want to be dramatic. "I'm having some chest pains, and I'd like you to reassure me that I'm not having a heart attack," I said.

About two hours later, I was still waiting for that reassurance. They couldn't give me it, and instead I found myself looking up at the sign on the right from a prone position on a moving gurney.

My electrocardiogram looked normal, but my blood tests weren't — in particular, the test for something called troponin, one type of which is released only from damaged heart muscle. My first result was at 0.11, just barely over the 0.10 considered to be the top end of "normal." They admitted me to the cardiac care unit for at least an overnight observation stay and more tests, but when the second blood test came back with a 0.16 troponin level, I couldn't tell myself any longer that it was probably just a lab testing error. And then the next test came back with a 0.57, at which point I wasn't there just for "observation" anymore.

About 5:00 a.m. on Tuesday, the elephant did indeed sit on the center of my chest. I had a whole lot of confidence in the professionals around me. But even all-stars don't bat 1.000, and I was very intensely aware that this situation was — what's that phrase? — just as serious as a heart attack.

But then things started looking better. Mid-morning, a doppler echocardiogram failed to reveal any specific areas of heart damage; some damage had been done, but apparently not very much, or at least not in any concentrated area. And before the afternoon was over, I had some new heart hardware — a couple of stents implanted during a cardiac catheterization, basically some re-plumbing of my heart conducted through a remote-control puppet show.

Here's the sort of catheter that they threaded through an incision my groin and up through my femoral artery to reach my heart, along with diagrams and examples of the stents that were left behind to keep my most troublesome coronary arteries open:

And here's an exciting video clip about the specific hardware of which I'm the proud new owner/wearer. (This may be a first in the blogosphere: "Weekend stent blogging.")

By Wednesday morning, I was moved out of the cardiac care unit to a regular room on the 7th floor of the Alkek Tower. By that afternoon, I was beginning to get up and around, and by Thursday, I was racking up some pretty good yardage up and down and around the corridors. On Friday morning, with the blessing of my docs, I very happily drove myself home.

Fifty years ago, this might have been a fatal incident. Twenty years ago, if I were lucky, I'd at least have spent some serious time on the operating table with my ribs pried apart, and I'd be looking at many weeks of recovery. Today, I just have a bruise about the size of Rhode Island on my right thigh and groin from the catheter insertion; it looks much worse than it feels. And my heart's actually working better than it has for years.

I could still screw things up if I don't make some serious changes in my ways, and I'm vastly more conscious of the fragility of life and health in general. But I'm a very lucky man.

*******

I can't say enough good things about the professionals at The Methodist. From my cardiologists all the way through to the food service and housekeeping crews, these folks are competent, efficient, pleasant, and compassionate. Here are just a couple of them — two of the nurses from the cardiac care unit who posed for my camera during one of my Thursday afternoon intrahospital hikes:

I'm not going to enable comments on this post, and I'm not trolling for sympathy emails or tip-jar contributions. Send Beldar no flowers, and certainly shed no tears!

I did want to tell the tale here, though, and publicly thank the folks at The Methodist. (I also owe thanks to my family and co-workers, and to my creator, but I'll address them through means other than my blog.)

One of the things that really tickled me this past week were a series of photographic prints that hang in The Methodist's hallways, three of which I've reproduced in this post. They're intended as gentle and humorous reminders to hold the noise levels down, I guess. But they seemed to be saying to me: "Shut up and count your blessings, Beldar."

Saturday, July 09, 2005

Clarity about Gitmo and the law

I mostly stopped reading Andrew Sullivan several months ago, but this morning I was curious what he had to say about the London bombings. I didn't see anything on that topic that inspired any particularly strong reactions in me, but this item caught my eye for some reason:

FIXING GITMO: What Washington needs to do. Jon Rauch brings his usual clarity to the legal question, although I'm not as sanguine as he is about what may have happened during Gitmo interrogations.

So I followed the link to the online edition of the National Journal (admittedly not one of my regular reads) to see what struck Sully as "clarity" on the "legal question" about Gitmo. But I found it very hard to get beyond Mr. Rauch's first two paragraphs (boldface mine):

The Bush administration has been picking up, imprisoning, and interrogating people it regards as "enemy combatants" since the World Trade Center's twin towers fell. In this new kind of war, the administration said, many of America's most dangerous enemies are beyond the reach of conventional criminal law, and many are also too dangerous to release.

All true. The country faced an emergency after 9/11. So the administration unilaterally declared and exercised what amounts to selective martial law: the power to detain suspected enemies and hold them incommunicado, without meaningful access to courts or lawyers, for as long as they are deemed dangerous or able to provide useful intelligence. Two U.S. citizens were arrested and held in this way; hundreds of foreigners were sent to Guantanamo; more than 200 of them, according to the Pentagon, have since been released.

The language I've bolded above is the transition necessary for Mr. Rauch to avoid the correct observation in his first paragraph — that "many of America's most dangerous enemies are beyond the reach of conventional criminal law" — and it is in fact the necessary premise for the remainder of Mr. Rauch's essay. But it's not "clarity," legal or otherwise; it's a ridiculous and demonstrably false premise.

"Martial law" is something imposed by armies on a noncombatant civilian population. Nobody being detained at Gitmo even arguably fits that definition. Mr. Rauch's verbal sleight of hand — "what amounts to selective martial law" — isn't "clarity," but is rather a massive falsehood that becomes his excuse for a pious discussion of the Gitmo detainees as if they'd been placed there for, say, getting a bit too rowdy at an Iowa county fair.

Martial law isn't the legal basis for keeping POWs in captivity, and it isn't the basis for keeping irregular combatants (a/k/a "illegal" combatants because they're violating the "laws of civilized warfare" and can't qualify for the status of true POWs under those laws) in captivity either. No sort of law applicable to civilian noncombatants — whether martial law or regular criminal law — is the basis for detaining these men, and any arguments based on such a premise are offensively specious from the outset.

If you want some clarity — some genuinely elegant clarity — on this topic, Mr. Sullivan, read this short essay by Prof. Eugene Volokh. It's too tightly constructed, indeed seamless, to excerpt here in a way that does it justice, but it brings any reader to this absolutely inescapable conclusion (internal parenthetical omitted; bracketed portion mine):

[A]s a matter of law and of morality, it's perfectly proper to keep an enemy soldier [— whether he's been a lawful or unlawful combatant —] detained until he is no longer dangerous to us, even if that means he'll be locked up for the rest of his life. It's that; killing them on the battlefield; or letting them go so they can kill us.

UPDATE (Sat Jul 9 @ 12:45pm): Via Prof. Volokh's trackbacks, I came across this reply to his essay by Hanno Kaiser. Mr. Kaiser has the impression that the Gitmo detainees were captured not as combatants on a battlefield, nor through an exercise of martial law, but as persons caught up in a "pocket of [American] executive or military power" that has since dissipated. Equally bogus; amazingly obtuse and otherworldly; something that could only be written by a man with absolutely no concept of what it's like for an American soldier to have an RPG fired at him on a battlefield.

Friday, July 08, 2005

Gonzales and recusal

(Initial disclaimer: I have zero inside information and don't wish to get into the speculation that's whipping around the cable news networks and the internet over whether Chief Justice Rehnquist and/or Associate Justices Stevens and Ginsburg might be about to resign.)

Ed Whelan has been writing a series of posts on NRO's Bench Memos blog to argue that a — or perhaps in his view "the" — key reason Dubya shouldn't nominate Attorney General Alberto Gonzales to a seat on the Supreme Court is that by virtue of his service as AG, Gonzales would have to recuse himself from many, many important cases in which he's been involved on behalf of the DoJ and the Bush Administration. His newest full-fledged op-ed on NRO, and a follow-up post on the blog, feature Mr. Whelan's fairly technical debate with an unnamed (but obviously very bright) correspondent over just how often a hypothetical Justice Gonzales would have to recuse himself under the relevant statute.

I'm not sure who has the better of the argument over the statute. And although I have some reservations about a Gonzales nomination and see no shortage of other appealing candidates, I definitely don't know as much about his heart and his mind and his character as Dubya does. I actually give more than just lip service to the idea that a President (any President) ought to be given a whole lot of discretion in making these choices. Based on that, I'll enthusiastically support a Gonzales nomination if that's indeed who Dubya picks.

But I do have this to say in particular about Mr. Whelan's recusal arguments: Whether it's in a few pending and impending cases, or in a whole lot, it's reasonably certain that a Justice Gonzales would have to recuse himself in at least some cases. But this man (d/o/b 4 Aug 1955) is still a bit shy of fifty; it's not inconceivable or even unlikely that he could be on the Court for twenty, twenty-five, even thirty or more years. I'm not saying that potential recusal problems are absolutely meaningless. But they'd be in a limited number of cases, and the problems would essentially be gone in a couple or three years. Even if Mr. Whelan's interpretation of the statute is correct and the percentage during those two or three years is significant, making this a disqualifying factor all by itself would be very short-sighted.

Mr. Whelan's almost certainly a smarter lawyer than me, but I'm older than him. And as an old fogey, I confidently proclaim that what's on the Court's current plate, or what's likely to be added to it in the next year or two or three, just isn't what this is mostly about. Dubya's drafting for the franchise — not for the next couple of seasons — and you don't strike a long-term prospect from your draft list over a twisted ankle that might hobble him for a few games.

The London bombings

In the summer of 1981 at the end of my judicial clerkship, one of my departing co-clerks and I bummed around the UK for a few weeks. We rented a car, acclimated ourselves with some difficulty to driving on the left sides of the roads, and made a long, lazy loop from London to Cardiff to Inverness and back. Our car broke down in a village just north of the Scottish-English border where we spent a very pleasant weekend waiting for required repair parts. We strolled everywhere and nowhere in particular. We hung out; we chilled. We drank and made friends with the locals at the pub over which our modest bed-and-breakfast lodgings were located. I remember that we were hugely amused by the large variety of American country western songs on the pub's jukebox; but beer is indeed the universal solvent, and as Texans we both knew enough of those songs so that we could sing along quite a bit with the locals, which they found hugely amusing. Our car was duly fixed on the following Monday, and our trip resumed. But then years later, in 1988, I was horrified, made sick to my stomach, to hear that little town's name — Lockerbie — on the news when Pan Am Flight 103 was blown up over and crashed down into it.

I returned to Britain with my new bride on our honeymoon in 1985. Another rent car, another drive up through England and Scotland. We arrived in Edinburgh as a rainstorm was ending, and to my dying day I'll remember the perfect, perfectly rare, intense double-rainbow we saw hanging over High Street — as if not just Scotland and its people were welcoming us, but their magic was too.

I was back in London in 1990 to present for videotape depositions the top executives of a British client I was defending in a Texas lawsuit. A partner and I had arranged to combine some pleasure with business by bringing our wifes and scheduling an intervening weekend between the depo prep sessions and the depositions themselves. Thus it was that on Saturday, March 31, 1990, my wife and I decided to attend an afternoon matinee performance of Miss Saigon in the West End. Even in our crummy seats in the theater's very back row, we were suitably affected by the play's wonderful, loud, scary special effects — explosions, gunshots, smoke, crowds, marchers, the helicopter landing on the roof of the embassy — and swept up in the play's fabulous music and strong emotions. When the matinee ended around dusk, we exited the theater to find ourselves instantly engulfed, to our extreme bewilderment and considerable fear, in the largest and most violent riot to take place in modern times in Britain. (We later learned that they were called the Poll Tax Riots, and they became a major part in ending Maggie Thatcher's long tenure as Prime Minister.) Immediately outside the theater's doors, we were almost trampled by a crowd of shouting, running protesters; and when we looked back to see what they were running from, we saw a phalanx of riot-geared Bobbies advancing toward us shield-to-shield at a fast trot. So we ran too — past overturned, burning luxury cars and smashed shop windows, past bloody-nosed sign-holders sprawled in the street, through non-SFX smoke and debris. It just seemed so surreal, so very wrong — this chaos and violence in the stately, wonderful London we loved! In fact, it seemed far more unreal than the play we'd just seen, and we couldn't willingly suspend our disbelief for London. We moved at right angles to the crowds and eventually, after we got out of the riot area, we finally were able to hail and sink into the welcoming, reassuringly dull comfort of a London taxicab, and thence we safely returned to our very nice hotel in Mayfair. Over a room service supper, we watched the last throes of the riot simultaneously on the telly and through our room's windows overlooking Hyde Park.

I'm an clear-eyed but unabashed Anglophile. My respect and affection for the Brits is boundless. My gratitude and appreciation for the special relationship between our countries has grown throughout my life. Every trip I've made there, whether I've been in busy London or sleepy Lockerbie, it's felt like "home" in a way that no other country but my own has done. And so watching the televised coverage of the terrorist-created carnage there during the last two days, I've once again felt heartsick, and absolutely inadequate in trying to formulate my condolences, or to express my sorrow for the dead and injured, my admiration for the rescuers, my solidarity with the citizenry. But I had to at least try, and hence this post. Maybe it's unbecoming for a private citizen, a grown man in far-away Texas, to say to a whole 'nuther country and its people, "I love you, and I'm awfully sorry for what's just happened." But that's what I feel like saying, and there you have it.

Judy's jail

Am I the only one who's wondering — after reading this NYT description of Judith Miller's jail, her privileges to mingle, and the identity of her co-inmates — whether Zacarias Moussaoui is about to become her next "confidential source"?

Talk about your small worlds! I suppose if Moussaoui is looking for the one fellow inmate whom he's reasonably sure won't someday snitch him out, Judy might look pretty good right now. And from her perspective, you know what they say: "One [jail] door closes, another opens!"

And I appreciated this gripping crowd scene photo, also from the NYT:

I can't quite make out all of the text on this fellow's chest, but I believe it says something about "Niger," "yellowcake," and "this lousy t-shirt." Anyway, although I know that Bill Safire and the NYT have expressed worries for Ms. Miller's safety, I think they can now at least discount the risks of her being accidentally injured by the supportive mob streaming over the barricades.

This bit, from the same article, is also fairly amusing:

In remarks outside the courthouse on Wednesday, Floyd Abrams, another of her lawyers, hinted at a possible strategy in the coming weeks.

"At some point before the expiration of that four-month period," Mr. Abrams said, "a lawyer can go back to Judge Hogan and say: 'Blank period of time has passed. She has not revealed her source. There's no reason to think that she will. And so we ask you to free her now.' That is something that does come up routinely in civil contempt situations."

But Charles L. Babcock, a lawyer specializing in First Amendment issues with the Jackson Walker law firm in Dallas, said he was dubious about that strategy's chances of success, given Judge Hogan's rulings.

Mr. Babcock is indeed the local equivalent of Floyd Abrams, the Texas go-to guy and lawyer of choice for media organizations. He's not quoted directly, and I suspect that however he expressed his "dubiousness" to the NYT, he was extremely polite and deferential to Mr. Abrams. I'll try to restrain my own snark, and limit myself to observing that in my own humble opinion, for Mr. Abrams' pitch to be likely to work, he'd need to be able to truthfully replace his "blank period of time [having] passed" phrase with "Hell having now definitely frozen over." I'm not expecting Judge Hogan to be the first one to blink here.

A related point that I haven't seen mentioned in the MSM: It's true that the suspension of the contempt sanctions pending Ms. Miller's DC Circuit appeal and Supreme Court cert petition has effectively shortened her short-term potential jail time. But when this grand jury's term expires, another one will be empaneled immediately; that which has been presented to this grand jury will be available to the next; subpoenas that were issued for this grand jury but were never fully complied with can and almost certainly will be re-issued for the next; and Judge Hogan is absolutely entitled and quite certain to take into account Ms. Miller's defiance of him and this grand jury in considering a re-filed civil contempt charge in connection with the next. If she gets one at all, Ms. Miller's release from jail at the conclusion of the present grand jury's term may be a very short holiday indeed. I'm confident that Mr. Abrams has so advised Ms. Miller and her employer. There aren't table stakes; this is a game of no-limit poker, and Judge Hogan has the nearly unlimited chip stack that goes along with the robe and the gavel.

Thursday, July 07, 2005

Is Judith Miller engaged in a noble act of civil disobedience?

Distinguished blogger and Wisconsin Law School Professor Ann Althouse wrote this today about Judith Miller's jailing:

I respect civil disobedience, defying the law for a cause. Part of it is accepting the consequences, as Judith Miller is doing. It's a very powerful image, a person going willingly to jail for a principle deeply believed in. It can work to produce a change in the law.

Of U.S. District Judge Thomas Hogan's comparison of Ms. Miller's conduct to that of a defiant child, Prof. Althouse wrote:

There being no federal journalist's privilege, the judge had to punish Miller, but he didn't have to say that. His effort to strip all dignity from her as she made her grand gesture backfired and made him look small.

I agree that some instances of civil disobedience can be admirable. Recall, for example, the image of the lone Chinese protester facing down the on-coming tank column in Tiananmen Square in 1989. But I respectfully and emphatically disagree that Ms. Miller is now engaged in a noble act of civil disobedience. Here's a (somewhat edited and inevitably expanded) reprint of my response in her blog's comments:

---------------

Prof. Althouse, you wrote: "There being no federal journalist's privilege, the judge had to punish Miller ...."

Okay, then, you, I, Judge Hogan, and a unanimous three-judge panel of the DC Circuit are all on record as agreeing that Judith Miller is a scofflaw who has willfully defied a valid order of a proper court having jurisdiction over both her and the subject matter. (The en banc DC Circuit and Supreme Court also declined to make a contrary ruling, but let's give Ms. Miller the benefit of the doubt by recognizing those as rulings not on the merits.)

"[H]er grand gesture" is by definition one of defying the law. We agree on that, do we not? The issue then becomes whether this particular act of "civil disobedience" is or isn't praiseworthy, admirable, grand, principled, and cloaked with "dignity."

Every other reporter and press organization involved in this controversy has made the opposite decision to Ms. Miller's (as supported and subsidized by her employer, the NYT). None of them has joined in her "grand gesture"; whatever dignity she's exhibiting, they all lack; whatever principle she seeks to vindicate, they have proved themselves willing to sacrifice.

But the only principle that she can be trying to vindicate is her "right" — not a legal one, we all agree, for the law provides no such right — to ignore the release concededly granted by her source that frees her from her original promise of confidentiality, based on her sole, subjective determination that the release was coerced and invalid. Her case is not one in which she's protecting a confidential source who claims to want to be protected, but rather one in which, to the question "Should I reveal your identity?" Ms. Miller will not take "yes" for an answer.

Nevertheless, Prof. Althouse, you see in that defiance of the law, and that nonconformance with the actions of every other reporter and news organization involved, and that insistance on following her own assessment of someone else's free will over his/her own assessment, some sort of "dignity." If so, how is that "dignity" distinguishable from psychosis? Surely it is not the intensity of her subjective sincerity that gives her dignity, is it? Timothy McVeigh was almost certainly as subjectively sincere in his beliefs until the moment that the lethal chemicals flowed through his veins. Is her dignity the same as his?

Judge Hogan and the unanimous three-judge panel of the DC Circuit — including the sole judge thereupon who agreed that the federal courts ought to craft a shield law comparable to the statutes passed by many states — all agreed that the prosecution's showing of need and exhaustion of alternatives here would have been sufficient to overcome any qualified privilege. Does her dignity come, then, from submitting to incarceration in order to promote the creation of a new rule of law that would not have kept her out of jail?

We should admire someone who wants to change the law to create an absolute privilege, unique to news reporters (however defined), that can never be overcome no matter how essential the reporter's testimony may be, no matter what prior lengths the prosecution has gone to in exhausting other means, and with that same reporter being the sole and absolute judge of whether her source has been coerced in releasing her from her promise of confidentiality? Is that what you think the law should become, Prof. Althouse? For that is exactly what the law must change into, in order for Judith Miller's defiance of the current law to be "principled."

Having failed to persuade any of the dozens of federal judges who've looked at her contempt citation that Ms. Miller ought not be jailed, Ms. Miller's superb attorneys had just filed papers asking with a straight face that she serve her sentence at home. She asked to be grounded — a punishment that parents impose upon defiant and rulebreaking children. There is "dignity" in that?

Ms. Miller is in fact acting like a selfish, spoiled, petulant child. I can't quite blame the judge at whom her contempt has been focused for saying so. He could have said much worse, with absolute factual justification.

I see no legitimate principle at stake here; I see no dignity, nothing grand. I refuse to even impliedly condone her lawlessness, or to impliedly encourage others to emulate her defiance, by pretending that there's anything at all noble in what she's done or what she's doing. I respectfully dissent.

--------------------

UPDATE (Fri Jul 8 @ 2:30pm): Prof. Althouse has graciously pointed out in a comment on her own blog (which she also thoughtfully re-posted here in my own blog's comments) that, contrary to my original inference, she has not taken a position "on whether Judith Miller made the right call that this was a matter that justified civil disobedience or whether if there were a federal statutory reporter's privilege it ought to cover the situation in Miller's case." Fair enough, and much appreciated.

Beldar to Brian Williams: "Revolutionary" ≠ "terrorist"

I belatedly found, via a link from Will Collier, what Will correctly calls NBC News anchor Brian Williams' "rather pompous non-apology apology" for writing and broadcasting last week that "several U.S. presidents were at minimum revolutionaries, and probably were considered terrorists of their time by the Crown in England." Mr. Williams' self-defense/non-apology included this assertion:

While I insist that a re-reading of my question will prove that in no way was I calling the framers "terrorists" (for starters, the word did not exist 229 years ago), I regret that anyone thought that after a life spent reading and loving American history, I had suddenly changed my mind about the founders of our nation.

Actually, "for starters" without being way too cute about it, the words "terrorist" and "terrorism" may indeed not have existed 229 years ago, but they certainly did exist well over 200 years ago — and the people and practices those words described in their earliest uses were as ugly then as those people and practices are now:

Terrorism is not simply a modern phenomenon. Rather, the word, along with terrorist, first appears in English in 1795 in reference to the Jacobins of France. They ruled France in what was called the Reign of Terror from 1793-94. By 1798, the term was being applied generally to anyone who attempted to achieve political goals through violence and intimidation.

The word is thought to have been coined by the Jacobins themselves, but the French terrorisme is not recorded until 1798. If the Jacobins did coin it, they are the only ones to have used it self-referentially. The term has always had negative connotations since then.

One of the reasons that the Reign of Terror was indeed recognized at the time to be so terrible was its vivid contrast, both in methods and results, to the experience of the then-very-recent American Revolution that had originally inspired the French Revolution. The Columbia Encyclopedia tells us that the Reign of Terror was

characterized by a wave of executions of presumed enemies of the [French] state. Directed by the Committee of Public Safety, the Revolutionary government’s Terror was essentially a war dictatorship, instituted to rule the country in a national emergency....

Responsibility for the police measures taken during the [Reign of Terror] lay also with the Committee of General Security, which had control over the local committees formed to ferret out treason. The Law of Suspects (Sept. 17, 1793) defined those who could be arrested for "treasonable" activities; it was enforced by the Revolutionary Tribunal. Estimates vary as to the number of victims; thousands were guillotined, and over 200,000 were arrested. Representatives on mission, who were agents sent out by the Committee of Public Safety, had absolute power to enforce the terror, including the establishment of special courts.

The counterrevolutionary uprising in the Vendée (Oct.–Dec., 1793), which was suppressed with a heavy loss of life, and revolts against the Convention in Lyon and several other cities served as a backdrop to the intensification of the terror of Jan.–Mar., 1794. In Nantes mass drownings called noyades claimed at least 3,500 lives. In June, 1794, the Committee of Public Safety introduced a new law, which strengthened the power of the Revolutionary Tribunal; the court could return only verdicts of either acquittal or death. Executions increased greatly.

But Mr. Williams is also wrong about how the British Crown perceived the American revolutionaries. It's true, of course, that some of those fighting for American independence from Britain were rough and violent men. Tory colonists fled, or were sometimes roughly driven, into exile, and there were occasional incidents of violence against civilians by both sides or their sympathizers. The Brits had pioneered these rough practices in and after their own civil wars; no one (and certainly no Irishman) ever called Oliver Cromwell "Mr. Lord Protector Nice Guy"; and a sizeable chunk of the American colonists or their forebears had fled similar and worse practices under the British government. King George III famously accused the American people in general of such "knavery" that Britain might be better off without them, and his 1775 declaration of rebellion
specifically accused the American revolutionaries of treason;
rebellion; disturbance of the peace; making war against him; and the "obstruction" of, and the "oppression" of those carrying out, "lawful
commerce" (that tea party business). But terrorism, by that or any other name? Nope.

Heck, Ben Franklin only broke familial relations with his Tory son, rather than trying to have him beheaded. Patrick Henry's cry was "Give me liberty or give me death!" rather than "Give them all death, the guilty and the innocent alike, slowly and painfully and publicly!" Nathan Hale wasn't quoted as saying, "I regret that I haven't killed thousands of innocent women and children for my country." George Washington was not Guy Fawkes, and although his artillery bombardment (partly directed by Alexander Hamilton) of British fortifications at Yorktown was indeed terrifying, those who marched out with Cornwallis were Redcoats, not civilians. Whatever his other personal failings, Thomas Jefferson had never murdered, raped, and pilaged his way through Canada. James Madison and James Monroe are rather more closely associated with the Bill of Rights than with jihad or fatwa. When John Adams, John Jay, and Ben Franklin signed the Treaty of Paris on America's behalf in 1783 to formally end the war, not one of them had explosive charges strapped around his waist; and his Britannic Majesty's express purpose in joining in that document was not to put a stop to anything remotely akin to "terrorism," but rather "to forget all past misunderstandings
and differences that have unhappily interrupted the good
correspondence and friendship which [Britain and the United States] mutually wish[ed] to restore,
and to establish such a beneficial and satisfactory intercourse
between the two countries upon the ground of reciprocal advantages
and mutual convenience as may promote and secure to both perpetual
peace and harmony."

If indeed Brian Williams' life has, as he claims, been "spent reading and loving American history," he should just have said:

I was badly wrong, and I'm very sorry for it. No U.S. President has ever been a "terrorist" even as that word came to be used shortly after the American Revolution. The British Crown considered the Founding Fathers to be revolutionaries and traitors, but never would have suggested that their primary means of trying to achieve political power was by the systematic and deliberate use of violence and threats of violence against civilians, because that was not even arguably true even from the British Crown's point of view.

While he was at it, he could also have mentioned that Gitmo also isn't the gulag of our times, I suppose.

But as it is, we're left with three possible conclusions, or some combination of them: Mr. Williams is indeed very stupid; or Mr. Williams lacks even a rudimentary understanding of morality and decency, right and wrong; or Mr. Williams was being less than fully truthful when he claimed to be a student of history. "Revolutionary" and "terrorist" are not now, and never have been, synonyms.

Wednesday, July 06, 2005

Women, judges, and women judges

Prof. Ann Althouse justifiably corrects NPR's Nina Totenburg for saying of the year 1981, when President Reagan appointed Sandra Day O'Connor to the Supreme Court, that "[t]here were very few women in law school." Prof. Althouse, herself a 1981 law school graduate, writes (emphasis hers):

It wasn't like: Wow, there's a woman on the Supreme Court — now, I see that women can go into the field of law!

I remember in 1981 saying to one of my many women lawprofs that I was interested in going into law teaching. One of the things she told me was that it used to help to be a woman, because law schools needed to increase the number of women on their faculties, but unfortunately I'd already missed that boat. That was too cynical, of course, but my point is that it was something you could say with a straight face in 1981, so let's not pretend O'Connor was a lone pioneer.

Still, it's sort of a question of what part of the snake's belly you focus on. Certainly, as Prof. Althouse points out, by 1981 women comprised a large percentage of law students and new lawyers, and a significant percentage of lawyers generally. But relative to those numbers, there were still comparatively few female partners at major law firms, female tenured law professors, and female trial and appellate judges — partly as a result of historical sexual discrimination, but also partly because those were (and are) not entry-level jobs.

During 1981, I was a law clerk for the second woman on the (old) Fifth Circuit, current Fifth Circuit Chief Judge Carolyn D. King, during her second year on the bench. Her single female predecessor, Phyllis A. Kravitch of Atlanta, had only a few months' seniority on her. The federal courts of appeals — usually considered to be the "farm teams" for the Supreme Court's bench — were definitely still "good ole boys' clubs" as of that time. Judge King, for example, was unusual because her previous practice experience was not in litigation, but in business and securities law, and that played a definite part in how the male judges of the Fifth Circuit perceived and related to her. But her two X-chromosomes were, frankly, a much bigger deal to many of those judges at the time, and some of them simply weren't quite sure how to deal with having these "lady judges" among them.

When rumors began to circulate that President Reagan was planning to appoint the Supreme Court's first female Associate Justice, both Judge Kravitch and Judge King were mentioned as potential nominees for the slot eventually filled with Sandra Day O'Connor; but like her, neither of them had been on any appellate bench for very long. And quite frankly, none of these three's then-existing judicial records — viewed objectively and without referrence to their sex — would have yet put them among the ranks of likely Supreme Court nominees. Justice O'Connor was indeed an "affirmative action" nominee to the Court — the beneficiary of a sexual preference that was genuinely remedial in nature, redressing the then-still-lingering effects of past sexual discrimination. President Reagan squeezed the lump that was then just beginning to pass through the belly of the snake, and Justice O'Connor squirted ahead of some of her peers.

The times, though, were indeed a-changin'. I also began my first year of practice in late 1981 at Houston mega-firm Baker Botts, which (if I recall correctly) had three women among its 100+ partners at that time. During my first jury trial that year, I was allowed to tag along, literally carrying the briefcases of two of the firm's male Trial Department partners, for a way-off-the-record in-chambers conference with Judge W. Erwin "Red" James of the 127th District Court of Harris County. Judge James was then nearing the end of a long and distinguished legal career that he'd begun as a Roosevelt New Dealer, and he was the very personification of a "good ole boy." But he made a point of also inviting back to his chambers Baker Botts' sole female Trial Department partner, who'd been passing by his courtroom on other business.

Now, Judge James was famous among the local trial bar for starting every day's public docket call with some sort of joke — typically corny, but always G-rated. But he was also famous for telling some much more ribald and otherwise politically incorrect jokes and stories in chambers, and on this day he did not disappoint. And in the midst of the jokin', cussin', and tobacco-chewin', I remember being distinctly struck with the significance of this young woman trial lawyer being included — and not merely tolerated, but genuinely welcomed — as "one of the good ole boys" back in his chambers. I had a sudden realization that over the last 8-10 years, she'd earned her way onto Judge James' mental list of "hale fellows well met," with whom he was entirely comfortable swapping off-color jokes. But she was definitely still a pioneer — and not an affirmative-action appointee in her role, either.

I'm tickled pink that there's no longer any need for broad remedial sex-based affirmative action at any level of the legal profession. But that is a change that has occurred over the course of my own twenty-five year career, and it's indeed true that Justice O'Connor's appointment was a powerful symbolic step in that progress. It's fascinating — as history.

Historic symbols can indeed have lasting power for their inspirational value, and were Dubya to appoint the Court's first hispanic member to replace Justice O'Connor, I would not belittle those who would celebrate its symbolic significance. But I genuinely believe that America is well past the point when we need to speak of a "southern seat," or a "black or hispanic seat," or a "Jewish or Catholic seat" — or "women's seats" — on the Supreme Court. The "soft bigotry of low expectations" can be pernicious here too; and tokenism of any variety just sucks. Who Dubya picks is hugely important, but it's for the content of his or her (judicial) character, and not really for any other reason. I'm completely indifferent as to whether his nominee has a Y-chromosome or not, and I think most of America is too. We should actively strive to become studiously and equally indifferent as well with respect to the nominee's home-state affiliation, religion, race, and favorite breakfast cereal.

Tuesday, July 05, 2005

Judy to judge: "Okay, maybe you can ground me, BUT ..."

Tread lightly when appearing again before a trial judge whose previous orders you've tried to appeal all the way to the Supreme Court.

After nearly a year of outright defiance of that trial judge's orders, you're poorly positioned to plead for special favors.

It's difficult to predict what particular arguments are likely to be most effective in persuading a federal district judge to a particular point of view, but it's easier — and always worth the effort — to try to spot and excise particular arguments that are likely to be not only ineffective but offensive.

But comes now scofflaw Judith Miller, whose supportive employer, the New York Times, writes this about her continued eagerness to defy both conventional wisdom and the combined federal trial and appellate courts:

[R]eporters [Judith Miler and Matt Cooper], who have consistently refused to testify about conversations with their sources, filed papers on Friday suggesting that they be sentenced to home confinement if incarceration is required. In the alternative, Ms. Miller asked to be sent to a federal prison camp in Danbury, Conn., and Mr. Cooper to one in Cumberland, Md.

Okay, so maybe I can be grounded. But I just do not understand why you can't get it through your pointy little judicial noggin that I am from the New York Times! And I don't know who you think you are, but if you're even thinking about orange jumpsuits and ankle manacles and a toilet in the same room in my suite that my bed is in — well, I have two words for you, buster: "No way!"

This leaves me thinking that Judge Thomas F. Hogan's ruling at tomorrow's hearing in this matter should consist of a combination of two words — "Yes, way!" — followed by a judicial index finger pointing first at the U.S. Marshals and then at Ms. Miller, followed by a judicial thumb gesturing back over his shoulder to the closest holding cell in the federal courthouse.

Special prosecutor Patrick J. Fitzgerald had a similar reaction to mine, but was much more wryly polite and less snarky:

Mr. Fitzgerald opposed those requests today, saying that the local jail in the District of Columbia "or some other nearby federal facility" would be more appropriate....

Mr. Fitzgerald, whose public filings to date have been restrained, was harshly critical of the legal position taken by Ms. Miller and of The New York Times's statements in support of her. His response to Mr. Cooper was barely 4 pages; to Ms. Miller, 21 pages....

... "Forced vacation at a comfortable home is not a compelling form of coercion," [Mr. Fitzgerald] wrote.

Friday, July 01, 2005

A few words about Justice O'Connor

Sandra Day O'Connor's resignation as an Associate Justice of the United States Supreme Court is not particularly a surprise. Press and pundits will focus mostly on the question of her successor, but as part of that they will discuss Justice O'Connor's particular role in the Court over the last 24 years.

When President Reagan appointed Justice O'Connor, I was nearing the end of my judicial clerkship for Judge Carolyn D. King on the Fifth Circuit. It was widely rumored that President Reagan was inclined to make history by appointing the first woman to the Supreme Court. And even though Judge King had been a Carter appointee to the Fifth Circuit and was only in her second year on that court's bench, her nomination had come about through the recommendation of a genuinely nonpartisan advisory panel; her Senate confirmation had been entirely routine; her father, as a Republican, had served as the New York Commissioner of Insurance, and she had other family connections to prominent Republicans; and there was only a very small handful of female U.S. Circuit Judges at that time. Then as now, it was common and logical for Presidents to look for Supreme Court nominees among the Circuit Judges of the U.S. Courts of Appeals. So Judge King's name was among those being floated as possible nominees, and I entertained brief fantasies about getting to tag along with her if she were elevated (having already collected a complete set of very polite letters rejecting my clerkship applications to the other then-existing members of the Supreme Court).

I remember being a little bit disappointed, then, for both Judge King and myself when President Reagan announced the O'Connor nomination, and my private comments then on the nomination were probably quite snarky. Although no one made a big deal of it at the time, new Justice O'Connor's prior record on the bench was, viewed objectively, very thin — comprising only a few years as an Arizona state-court trial judge and an even shorter stint on an intermediate-level Arizona state appellate court. To some extent, that thin judicial record was offset by her genuinely superb academic credentials (third in her class at Stanford Law) and the variety of her other legal experiences, which included both private practice and public service as a deputy county attorney and assistant state attorney general.

I find much to admire in her overall record as a Justice. And certainly Justice O'Connor has been a gracious, diligent, and dignified jurist who has entirely transcended what was, realistically, the "affirmative action" nature of her nomination at the time; for that, she's entitled to a great deal of credit. In hindsight, however, the most significant and predictive prior credential that Justice O'Connor brought to the Court was as a former Arizona state senator — and indeed, she was not just any state senator, but the majority leader of the Arizona state senate. As a Justice, she's been quirky and unpredictable — the pragmatic politician and compromiser, rather than a consistent bastion of any legal or philosophical principles. And thus I also find much in her overall record to fault.

If there are one or two such Justices on the Court at any given time, that may not be a bad thing. If there are three or more, though, the Court loses its effectiveness in leading the federal judiciary; it produces fractured results, splintered decisions, unpredictability, inconsistency, and philosophical muck. Congress can consistently create enough of that for all three branches of government combined, and that's where the pure politicians, the compromisers, ought to hold forth.

It's for that reason that I hope and trust Dubya will nominate a principled judicial conservative to succeed her — someone perhaps less "pragmatic" and "flexible" who will help stop the Court's current muddy drift. Intending no disrespect to any of them — for I do indeed genuinely respect all of the current Justices, including those with whom I almost always disagree — at this point, we need no more Souters, no more Kennedys, and no more O'Connors.

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